Connolly v Connolly

JurisdictionIreland
Judgment Date09 November 1866
Date09 November 1866
CourtRolls Court (Ireland)

Rolls.

CONNOLLY
and

CONNOLLY.

Hickson v. Lombard L. R., 1 Ap. 324.

Buxton v. Buxton M. & Cr. 95.

Selby v. Bowie 9 Jur., N. S. 425.

Archbold v. The Commissioners of Charitable Donations 2 H. of L. Cas. 240.

Phillips v. Phillips 2 Free. 12.

Tebbs v. CarpenterUNK 1 Mad. 298.

Moyle v. MoyleENR 2 Russ. & M. 710.

Stiles v. GreyENR 16 Sim. 230.

Clerk v. ClerkENR 2 Vern. 323.

Philips v. Brydges 3 Ves. 120.

Robinson v. ComynsENR Cas. temp. Talbot 164; S. C., 1 Atk. 473.

Williams v. HensmanENR 1 J. & H. 546.

Stiles v. GuyUNKENR 1 M. & G. 442; S. C., 16 Sim. 230.

Buxton v. BuxtonENR 1 My. & Cr. 80.

Hughes v. Williams 12 Ves. 493.

Ford v. GreyENR 6 Mod. 45.

York v. StoneENR 1 Salk, 158.

Eliz.ENR Co. Lit. 192 a.

Syme's case Cro. Eliz. 33.

Bellingham v. AlsopENR Cro. Jac. 53.

Morris v. Barry 1 Wils. 2.

Philpott v. DobbinsonUNK 3 M. & P. 320.

Williams v. HensmanENR 1 J. & H. 546, 558.

208 CHANCERY REPORTS. Mr. Exham, and Mr. Jellett, for different parties, opposed it. The MASTER OF THE ROLLS said that he would speak to the Master to whom the matter was referred. He felt difficulty in making an order which might be cited as a precedent. On a subsequent day his Honor said he had communicated with the Master, who concurred with him in opinion that the order asked for would lead to much inconvenience and expense : that the case cited, Toosey v. Burehell (a), did not apply ; for there the party who had been the litigant assigned all his interest to the applicant, and took no further part in the suit ; but here the ,applicant sought to do what was the duty of the executor, who was still in Court to protect his interests, there being no suggestion of collusion, and nothing to prevent him from assisting the executor if he pleased. The motion was refused with costs. (a) Jac. 159. Nov. 6, 9. CONNOLLY v. CONNOLLY. An adminstra- Josh CONNOLLY the third died on the 15th of May 1861, intestate. tor having let lands of the His widow, Isabella Connolly, and a posthumous son, John Francis intestate, un der a written Connolly, were entitled to his personal estate. Administration was agreement for a lease, which could not be enforced, and neglected to take legal proceedings to reÂmove an occupier, in order to give possession in pursuance of the agreement, in consequence of which the tenant refused to take the lease, and the lands remained unlet for half a year, was charged with half a year's rent, and the costs of the aborÂtive letting. Wilful default in an executor does not imply deliberate or intentional default. He may be charged with a loss arising from mere negligence or imprudence, if unexÂcused. A discharge in an administration suit imputed fraud and improper motives to the administrator, in not having let lands to a particular tenant ; and also sought to charge the administrator with wilful default in not letting the lands. The charge of fraud was disproved. Held, that, as the charges were distinct, the respondent was not precluded, by failing to establish fraud, from relying on a case of wilful default. An undivided part of lands, held for a term of years, was devised to A for life ; remainder to B and C, as joint-tenants. A and the executors of the will joined in a conveyance to C, in trust for the several and respective parties entitled thereto, in order to enable C to grant a lease of the lands. C granted leases, reserving the rent to himself. Held, that the joint tenancy between B and C was severed. , CHANCERY REPORTS, 209 granted to the petitioner James Connolly the third, the brother 1866. of the said John Connolly, on the 15th of June 1861. At the R olls time of his death, John Connolly was in possession of the lands CONNOLLY V. of Loughnagore and Ballinwire, subject to an agreement with Kelly, CONNOLLY. a caretaker, for the occupation of a house for a year, which expired Statement. on the 1st of May 1861. John Connolly was also possessed of an undivided part of the lands of New Haggard. The petition was filed by James Connolly the third, the adminisÂtrator of John Connolly the third, on the 2nd of June 1843, for the administration of his real and personal estate, and was referred to Master Murphy, under the 15th section of the Court of Chancery (Ireland) Regulation Act 1850. The petitioner filed a charge ; and the respondent, Isabella Connolly, filed a discharge, in which she sought to charge him with wilful default in respect of the lands of Loughnagore and Ballinwire. The case made by the discharge was as follows :-That the petitioner, instead of selling the stock on the lands of Loughnagore and Ballinwire, as he sold the stock on New Haggard, and at once setting these lands to the highest bidder, kept all the work going on under a steward or caretaker, at great expense, for several months ; and the respondents charged that this was done not for the benefit of the respondents, but for some personal object of the petitioner. That the petitioner, early in the year 1861, advertised for proposals for said lands ; and, although several persons, who would have been eligible tenants therefor, offered to take same at an annual, rent of £2. 10s. Od. an acre, none of said proposals were accepted ; and the petitioner and his solicitor seemed willing to let said lands to a Mr. Colgan, the present tenant, who only offered 46s. or 48s. an acre. That the respondent's solicitor was not consulted in reference to the disposal or management of the lands until September 1861, long after the aforesaid proposals had been submitted and not accepted, and the respondent's solicitor then required that the lands should be set up to auction ; which was accordingly done, on the 14th of November 1861 ; and Mr. Andrew Connolly, a gentleman perÂfectly solvent, and highly respectable, being the highest bidder, was declared the tenant, at the yearly rent of £288. 12s. Od., being VoL. 17 27 210 CHANCERY REPORTS. at the rate of £2. 12s. Od. per acre, from the 1st of November 1861 ; and the respondents charged that the petitioner had a perÂsonal objection to said Andrew Connolly, and previous to the auction informed the respondent's solicitors, and wished to prevent Andrew Connolly from being declared the tenant ; and that the petitioner was dissatisfied with the result of the auction, by reason of the said Andrew Connolly having been declared the tenant ; and that the petitioner took no trouble to obtain or give the possession of the lands to the said Andrew Connolly ; on the contrary, he remained inactive, and allowed the months of November, December, January, and February to pass by without giving possession to said Andrew Connolly, and leaving a steward of the intestate John Connolly in charge of the lands, who refused to give up possession, and who could have been easily arranged with if the petitioner were really and bona fide desirous to do so ; and the result was, that said Andrew Connolly refused to sign the lease, or to become tenant to said lands. That the lands were again set up for auction on the 14th of March 1862, from the 25th of March 1862, and let at a rent of £271. 3s. 4d. That there was no competition at the auction, caused by some understanding or arrangement between the petiÂtioner and those acting for him and Colgan, and also by the auction not having been properly advertised ; and the respondents charged that there was a loss, by the petitioner's contrivance and wilful default, not only of £17. 8s. Od. a-year, from the 1st of November 1861, but also of half a year's rent of both denominations, and that the petitioner should be charged with such loss, and that the costs of the letting should be disallowed. The petitioner and respondents went into proofs, on charge and discharge, by the Master's directions. The respondent's evidence did not support the charge of fraud and improper motives in letting the lands, imputed to the petitioner by the discharge. The petiÂtioner filed an affidavit, in which he stated that he did not obtain administration until the 15th of June 1861, owing to a caveat having been entered by another brother of the intestate, and that he was unable to accept any of the proposals for the lands, insconseÂquence of the litigation which ensued ; that he managed and cropped CHANCERY REPORTS. 211 the lands, and realised a large sum, which he specified. That, after Andrew Connolly was declared the tenant, he used every exertion short of legal proceedings to give him possession, and to...

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1 cases
  • Hayes' Estate
    • Ireland
    • Land Commission (Ireland)
    • 24 February 1920
    ...the joint tenancy. (1) [1891] 3 Ch. 59. (2) 40 L.J. Ch. 28. (3) 2 Giff. App. 1. (4) 1 J. & H. 546. (5) 32 Beav. 28. (1) 3 Ves. 256. (2) 17 Ir. Ch. R. 208, (3) 2 Gifford, Appendix 1. ...

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